Citation Nr: 1702404
Decision Date: 01/27/17 Archive Date: 02/09/17
DOCKET NO. 09-09 944 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for an ear condition, to include a torn eardrum and ear infections, claimed as secondary to allergies.
2. Entitlement to service connection for toxic shock syndrome.
3. Entitlement to service connection for colon polyps, to include as secondary to toxic shock syndrome.
4. Entitlement to an initial compensable disability rating for residuals, herniated disc, C5-6, prior to June 29, 2016.
5. Entitlement to an increased disability rating for residuals, herniated disc, C5-6 from June 29, 2016, rated as 10 percent disabling.
6. Entitlement to an initial disability rating higher than 30 percent for migraine headaches.
7. Entitlement to an increased disability rating for glaucoma, rated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
D.S. Lee, Counsel
INTRODUCTION
The Veteran served on active duty from November 2000 through November 2005 and from June 2006 through July 2007.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2008 and in September 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The Veteran's testimony concerning her migraine headache disability was received during a July 2015 Board hearing. A transcript of that testimony is associated with the record.
The Board granted a higher 30 percent initial disability rating for the Veteran's migraine headaches in a February 2016 Board decision and remand. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). Citing the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8100 and the CAVC holding in Pierce v. Principi, 18 Vet. App. 440 (2004), counsel for the Veteran and the VA Secretary (the parties) argued in a Joint Motion for Partial Remand (Joint Motion) that the Board failed to explain fully why the criteria for a disability rating higher than 30 percent are not met. In that regard, the parties note that, the Board's determination that the Veteran's headaches were not productive of severe economic inadaptability was based primarily upon the Veteran's hearing testimony that the Veteran had flexibility in her daytime and nighttime work schedules to alter them as needed depending on the severity of her symptoms. In doing so, the parties argue, the Board did not consider more appropriately the extent that the Veteran's headaches were impacting her work, and also, whether her headaches were capable of producing severe economic inadaptability. Accordingly, the parties argued that, to the extent that the Board declined to assign an initial disability rating higher than 30 percent, the Board's decision should be set aside and remanded to the Board for proceedings consistent with the arguments set forth in the Joint Motion.
The Joint Motion was granted by CAVC in an October 2016 Order. The issue concerning the Veteran's entitlement to an initial disability rating higher than 30 percent for migraine headaches now returns to the Board in the foregoing appellate posture.
This appeal initially included issues concerning the Veteran's entitlement to service connection for liver damage, left axillary cyst status-post incision and drainage, irritable bowel syndrome, and chronic rhinitis (claimed initially as allergies and a sinus condition); an initial compensable disability rating for bronchitis; and an initial compensable disability rating for a residual scar from excision of a left axillary cyst. The issues concerning the Veteran's liver damage, bronchitis, left axillary cyst, irritable bowel syndrome, and residual scar from excision of the left axillary cyst were adjudicated fully by the Board in the February 2016 Board decision and remand. The Board's adjudication of those issues has been left undisturbed. Also, the issues concerning the Veteran's left ulnar motor mononeuropathy, C5-6 herniated disc, and chronic rhinitis were adjudicated in an August 2016 rating decision. In a September 2016 submission, the Veteran expressed that she was satisfied with the RO's rating decision and that she was not seeking further appeal of the issues adjudicated therein. Accordingly, the foregoing issues do not remain in an appellate status before the Board.
The issues of the Veteran's entitlement to an initial disability rating higher than 30 percent for migraine headaches and an increased disability rating for glaucoma, rated as 10 percent disabling, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
On September 1, 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that she wished to withdraw her appeal as to issues concerning her entitlement to service connection for an ear condition, to include torn eardrum and ear infections, claimed as secondary to allergies; service connection for toxic shock syndrome; service connection for colon polyps, to include as secondary to toxic shock syndrome; a compensable initial disability rating for residuals, herniated disc, C5-6 prior to June 29, 2016; and an increased disability rating for residuals, herniated disc, C5-6 from June 29, 2016, rated as 10 percent disabling.
CONCLUSION OF LAW
The criteria for withdrawal of the Veteran's appeal concerning her entitlement to service connection for an ear condition, to include torn eardrum and ear infections, claimed as secondary to allergies; service connection for toxic shock syndrome; service connection for colon polyps, to include as secondary to toxic shock syndrome; a compensable initial disability rating for residuals, herniated disc, C5-6 prior to June 29, 2016; and an increased disability rating for residuals, herniated disc, C5-6 from June 29, 2016, rated as 10 percent disabling, are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.
In this case, the Veteran has withdrawn her appeals concerning the issues of her entitlement to service connection for an ear condition, to include torn eardrum and ear infections, claimed as secondary to allergies; service connection for toxic shock syndrome; service connection for colon polyps, to include as secondary to toxic shock syndrome; a compensable initial disability rating for residuals, herniated disc, C5-6 prior to June 29, 2016; and an increased disability rating for residuals, herniated disc, C5-6 from June 29, 2016, rated as 10 percent disabling. Hence, no allegations of errors of fact or law concerning those issues remain for appellate consideration. Accordingly, the Board does not have jurisdiction to review the Veteran's appeals as to those issues and they are dismissed.
ORDER
The Veteran's appeal concerning her entitlement to service connection for an ear condition, to include torn eardrum and ear infections, claimed as secondary to allergies, is dismissed.
The Veteran's appeal concerning her entitlement to service connection for toxic shock syndrome is dismissed.
The Veteran's appeal concerning her entitlement to service connection for colon polyps, to include as secondary to toxic shock syndrome, is dismissed.
The Veteran's appeal concerning her entitlement to an initial compensable disability rating for residuals, herniated disc, C5-6, prior to June 29, 2016, is dismissed.
The Veteran's appeal concerning her entitlement to an increased disability rating for residuals, herniated disc, C5-6 from June 29, 2016, rated as 10 percent disabling, is dismissed.
REMAND
The Board finds that the following additional development is necessary as to the issues remaining on appeal:
A. Higher Initial Disability Rating for Migraine Headaches
Notably, the record shows that the Veteran was last afforded a VA examination of her migraine headaches over nine years ago in October 2007. Records for treatment received since that time show that the Veteran has been treated sporadically for her headaches, and that the Veteran has reported consistently that her migraines have continued. Although VA treatment records from October 2012 reflect that the Veteran was reporting that her migraines had improved and were occurring once or twice a week at most, records for treatment later in August 2013 indicate that her migraines were worsening at that time. In that regard, she reported that her migraines had increased in frequency to two or three times a week, were described as being "bad," and were accompanied by nausea and photophobia. During VA treatment in December 2014, she reported ongoing headaches among other medical issues and indicated that she felt as though her condition had become worse. During her July 2015 Board hearing, she testified that she was having less severe migraine attacks two or three times a week that lasted for periods of a few hours, but also, more severe migraine attacks two or three times a month that lasted in duration for periods of a few days. She testified further that her migraines caused her to go to a dark room until symptoms subsided, and also, that her headaches were causing her to take time off from work or to alter her work schedule.
The evidence indicates that the Veteran's migraine headaches may have worsened in general over the nine year period since her last VA examination in October 2007. Under the circumstances, the Veteran should be afforded a new VA examination of her migraine headaches to ascertain their current frequency, all associated symptoms, the severity of those symptoms, and the degree of associated functional impairment. 38 C.F.R. § 3.159(c)(4).
B. Increased Disability Rating for Glaucoma
As noted above, testimony was received from the Veteran during a July 2015 Board decision. At that time, the issue of the Veteran's entitlement to a higher disability rating for glaucoma was not in an appellate status. Accordingly, testimony concerning her glaucoma was not received during that hearing.
After the July 2015 Board hearing, the RO issued to the Veteran a March 2016 Statement of the Case that continued to deny her claim for an increased disability rating for glaucoma, rated as 10 percent disabling. The Veteran perfected her appeal as to that issue in an April 2016 VA Form 9 substantive appeal. In the substantive appeal, the Veteran requested that she be afforded a Travel Board hearing so that she could provide testimony concerning her glaucoma disability.
The Veteran should be scheduled for a Travel Board hearing so that her testimony concerning her glaucoma disability can be received and made a part of the record on appeal.
C. Other Development
In order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should be asked to identify private and/or VA treatment providers who have rendered treatment for her glaucoma and migraines since July 2016. VA must then make efforts to obtain the records for any treatment identified by the Veteran. 38 C.F.R. § 3.159 (2016).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be asked whether she has additional evidence pertaining to her migraine headaches and glaucoma since July 2016, and if so, assist her in obtaining it. Relevant VA and other Federal treatment records dated from July 2016 through the present should also be associated with the record.
2. Thereafter, arrange for the Veteran to undergo a VA examination of her migraine headaches to determine their frequency, associated symptoms, the severity thereof, and the extent of any associated functional and/or occupational impairment. The entire claims file must be made available to the examiner.
All necessary tests and studies should be conducted. The examiner should render specific findings with respect to the existence, extent, and frequency of symptoms and manifestations associated with the Veteran's migraine headaches. The examiner should comment upon the impact of the Veteran's migraines on her activities of daily life and occupational functioning.
The examiner must provide a complete rationale for all opinions and conclusions. Such rationale must include a discussion of all relevant findings from the examination and applicable medical principles. The examiner must express all findings, conclusions, and supporting rationale in a typewritten report.
3. Schedule the Veteran for a Travel Board hearing concerning her glaucoma disability. After the hearing, the claims file should be returned to the Board in accordance with appellate procedures.
4. After completion of the above development, the issues on appeal should be readjudicated. If the determination remains adverse to the Veteran, she and her representative should be furnished a Supplemental Statement of the Case and be given an opportunity to respond.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs